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A federal appeals court will hear oral arguments Tuesday in a civil case involving the conscientious objector status of a medic from Schweinfurt, Germany, who recently went AWOL to avoid a second tour to Iraq.

While the action in federal court is independent from the AWOL case the Army is building against Spc. Agustin Aguayo, it would affect his military status if the court rules in his favor, according to Aguayo’s attorneys.

Aguayo, a 1st Battalion, 18th Infantry Regiment medic, refutes Secretary of the Army Francis J. Harvey’s rejection of his application for discharge on the basis of being a conscientious objector. The July 2004 decision came despite a favorable recommendation by the officer who led the investigation into the claim. He was overruled by an Army lawyer and chaplain.

In court documents, Army attorneys stated that Aguayo failed to “present clear and convincing evidence” that he was a conscientious objector.

Earlier this year, a U.S. District Court judge strongly sided with the Army, which led Aguayo to petition the U.S. Court of Appeals in Washington, D.C. Tuesday’s hearing before a three-judge panel — docket number 06-5241 — will consist of just oral arguments. Each side has been allotted 15 minutes to articulate their case.

Aguayo, 34, surrendered to Army authorities in California last month before his status changed from absent without leave to desertion. Some of his supporters fear the Army will not only charge him with missing a unit movement but with desertion, even though he was AWOL for less than 30 days, the standard benchmark.

While the Army has yet to formally charge Aguayo, his attorneys have said their client faces up to seven years in a military prison for refusing to go to Iraq a second time.

Aguayo maintains he didn’t realize he was a conscientious objector until after he joined the Army in 2003. Such evolutions of thought are recognized by the Army in limited cases. In this case, however, the Army doesn’t buy the claim, saying Aguayo is simply trying to avoid a tour in Iraq.

The California native, whose regular four-year enlistment was due to end in January, served in Iraq from February 2004 to February 2005. It was early into the deployment when Aguayo applied for conscientious objector status.


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